Jacobson v. "Almostinnocentbystander" [1]

On Febraury 14, 2012, Republican presidential nominee Rick Santorum spoke at an event in Coeur d'Alene, Idaho. The Kootenai County Republican Chair, Tina Jacobson, was present at the event and appeared on the stage with Santorum.

The blog Huckleberries Online – which is operated by the Spokesman-Review, owned by the Cowles Publishing Company – covered the event through a blog post with gathered Twitter messages from reporters at the event. According an affidavit filed by the plaintiff [2], in the comments field following the blog post, a user by the name of "almostinnocentbystander" made the following comment:

Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina's blouse??? Let's not try to find out.

A user by the name of "Phaedrus" then replied, "[m]issing funds? Do tell." User "OutofStaterTater" posted. "Yes, do tell, Bystander. Tina's missing funds at the local GOP, Sheriff Mack, and John Birch Society are coming to town, things are getting interesting around here." Almostinnocentbystander replied:

@Phaed - the treasury has gone a little light and Mistress Tina is not allowing the treasurer report to go into the minutes (which seems common practice). Let me rephrase that ... a whole Boat load of money is missing and Tina won't let anyone see the books. Doesn't she make her living as a bookkeeper? Did you just see where Idaho is high on the list for embezzlement? Not that any of that is related or anything . . . 

The timestamps on the comments were between 3:31pm and 5:25pm. According to the affidavit of Daniel Olivera [3], manager of the Huckleberries Online blog, the posts by almostinnocentbystander, Phaedrus, and OutofStaterTater were removed around 6pm that day. Mr. Olivera posted the following two days later:

On Tuesday, Huck's online poster almostinnocentbystander made a baseless allegation against Tina Jacobson, Chairwoman of the Kootenai County Republican Central Committee. I deleted that post and three others that referred back to it as soon as I saw them. I also informed almostinnocentbystander that posting privileges at Huck's online have been revoked. In response today, almostinnocentbystander e-mailed this: 'I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson.' Huck's online commenters should feel free to flag posts they think are inappropriate -- DFO.

On April 23, 2012, Jacobson filed a complaint [4] in the District Court of the First Judicial District of Idaho, Kootenai County, alleging libel based on the statement made by "almostinnocentbystander." On April 25, Jacobson issued a subpoena duces tecum to Cowles Publishing, seeking the identifying information for "almostinnocentbystander" as a defendant, and "Phaedrus" and "OutofStaterTater" as third-party witnesses. Cowles Publishing filed a motion to quash [5] the subpoena on May 11, arguing that the plaintiff has failed to meet the anonymous speech disclosure standards set forth in Dendrite Int'l v. Does [6], Doe v. Cahill [7], and the U.S. District Court for the District of Idaho's S 103, Inc. v. Bodybuilding.com, LLC [8]. Cowles also argued that disclosure in this case would violate Idaho's common law reporter's privilege.

On May 21, 2012, Jacobson responded [9] to the motion to quash. Jacobson argued that Cowles could not take advantage of the state's reporter's privilege law because the company was acting as an Internet service provider, and not as a newspaper, with respect to the Huckleberries Online blog. Jacobson further argued that the commentators had waived their rights by violating the Huckleberries Online terms of service, which instruct users to not post defamatory material, and that the Dendrite test is met, because the comments were defamatory per se. 

On May 29, 2012, Cowles replied [10] to Jacobson's response, asserting again that the statements at issue were protected opinion, that Jacobson is a public figure and thus must also show actual malice, and that Olivera's subsequent investigation into the comments made by "almostinnocentbystander" were subject to protection under the reporter's shield law.

On July 10, 2012, Judge Patrick Luster denied the motion to quash as to "almostinnocentbystander." The court opted to apply the standard for disclosure of anonymous commentators set forth in S 103, Inc., which requires that the plaintiff (1) make reasonable efforts to notify the defendant of a subpoena, (2) demonstrate that the plaintiff would survive a summary judgment motion, and (3) that the court balance the anonymous poster's First Amendment right of free speech against the strength of the plaintiff's case. The court found that Jacobson had made reasonable efforts to notify all three commentators. On the sufficiency of Jacobson's pleadings, the court found first that Jacobson was a public figure for purposes of the lawsuit. Second, the court found that the allegation of a missing $10,000, paired with the almostinnocentbystander''s retraction showed the requisite fault. The court further found that the balance of interests favored disclosure, because "the First Amendment does not protect defamatory speech."

In contrast, the court found that Jacobson had not met the burden for disclosure as to "Phaedrus" and "OutofStaterTater," and accordingly quashed the subpoena as to those parties.

The court ordered Cowles to comply with the subpoena as to "almostinnocentbystander" within fourteen days.